Reflections on the Michaelmas Term

In this post, the first of a quarterly feature, we set out a review of the judgments of the UKSC’s Michaelmas Term. We will be posting similar reports at the end of each Court term going forwards. Our aim is to provide a concise summary of the new law made by the Court; but there is a wider purpose, too. We want to consider what, if any trends, are emerging; and see if we can provide answers to certain key questions which continually surface in the debate about the Court. For example, is it worth the money? Has anything changed? And in the longer term, will the Court act with any greater independence than the House of Lords, and are there any signs emerging that the Court will act in constitutional terms in more radical ways than its predecessor?

A Revolution, of Sorts?

In 1867, Walter Bagehot wrote that “the supreme court of the English people ought to be a great conspicuous tribunal”, which “ought not to be hidden beneath the robes of a legislative assembly“. Since 1399, the country’s top appellate Court had been part of the House of Lords – a feature of the British constitution which from the age of the Enlightenment onwards had begun to look increasingly anachronistic. Gladstone was also a passionate advocate of an independent supreme court which paid respect of Montesquieu’s principle of the separation of powers. Indeed, had the grand old man not lost the general election to Disraeli in 1873 his Constitutional Reform bill would have saved Tony Blair a good deal of bother, and no small amount of controversy, 130 years later.

On 1 October 2009, Bagehot and Gladstone’s vision became a reality. Eleven judges (ten men: one woman) clad in expensive ceremonial robes walked across Parliament Square to the old Middlesex Guildhall and were sworn in as Justices of the new Supreme Court of the United Kingdom. Two weeks later, a gathering of the great and good including the Queen, the Prime Minister, the Archbishop of Canterbury and senior judges from supreme courts around the world were treated by Lord Phillips to a guided tour of the Court’s shiny new home, refurbished at a cost of £59m and sporting a smart logo (the English rose, Welsh leek, Scottish thistle and Northern Irish flax), glass screens gilded with wise legal aphorisms, audiovisual facilities in each Court room, a poem composed for the occasion by Sir Andrew Motion, and even a striking carpet designed by the Pop Artist, Sir Peter Blake.

From day one, the Court has divided opinion. The government called it a “major constitutional milestone”; the Guardian’s leader spoke excitedly of “Britain’s October Revolution”; Dinah Rose QC, the first advocate to address the Court, spoke of a “short walk across Parliament Square, but a giant leap for the judicial system”; and Lord Pannick QC thought that the new Court “emphasises the role of an independent judiciary as a pillar of our constitution, protecting the rights of all persons, whatever their status, and ensuring that the powerful respect the limits on their authority”.

Others were less impressed, pointing to the fact that (other than the addition of jurisdiction over devolution issues formerly enjoyed by the Privy Council) the new Court was in substance identical to its predecessor, and could hardly be called ‘supreme’ in light of the powers of the ECJ and ECHR. Some mourned the passing of another great British institution. In The Times, Tristram Hunt wrote that “locating the law lords in the House of Lords was a part of that idiosyncratic, colourful, contradictory element to the British constitution – all now replaced by a clinical, linear, utilitarian court”. The British public, meanwhile, were largely either unaware or unmoved.

The Judgments

The Justices had a busy first term. The Court sat for 33 out of the 44 days of term, starting with a seven judge panel hearing, Her Majesty’s Treasury v A (a case about orders freezing the foreign assets of suspected terrorists, which, as it involved judicial examination of the proper limits of executive power, was welcomed by some commentators as a sign of things to come). It heard 14 substantive appeals and 2 applications, and handed down 17 judgments, all but 7 of which were in cases which had been heard earlier in the year by the Judicial Committee of the House of Lords. Towards the end of term, these judgments were formally handed down by a new innovation “the hand down bench”, sometimes including only one of the judges who made the actual decision. Lord Hope was the busiest Justice, sitting for a total of 29 days.

The judgments given this term were as follows:

R (E) v The Governing Body of JFS & Ors [2009] UKSC 1. E’s application for a protective costs order was unsuccessful, although the Court did hold that the decision of the LSC to withdraw funding to E if no protective costs order was obtained (when LSC had funded the case at first instance and at the Court of Appeal) had been unlawful.

In Re Sigma Finance Corporation (in administrative receivership) [2009] UKSC 2. Dealing with the priority of creditors on insolvency of structured investment vehicle; a purposive approach was taken to the interpretation of trust deed in allowing the appeal of creditors previously time barred.

R (L) v Commissioner of Police for the Metropolis [2009] UKSC 3. Information contained on enhanced criminal record certificates held not to be a breach of the right to privacy in Article 8 ECHR.

Louca v A German Judicial Authority [2009] UKSC 4. The validity of a European Arrest Warrant was upheld, despite technical infringements.

In Re B (A Child) UKSC 5. A grandmother’s appeal to retain custody of a child instead of biological father was allowed.

OFT v Abbey National plc & Ors [2009] UKSC 6. The OFT could not assess whether charges against consumers for taking unauthorised overdrafts were fair or not, because such an assessment fell under the exclusion in Regulation 6(2)(b) of UCTA 1999 which prohibits the OFT from evaluating whether contracts are good ‘value for money’.

BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7. A second appeal against a deportation order should be allowed to proceed unless it has been certified as unfounded, irrespective of whether the Secretary of State has designated it a ‘fresh claim’ or not.

R (A) v London Borough of Croydon [2009] UKSC 8. Under section 20(1) of the Childrens Act 1989 the question whether a child was “in need” was for the local authority to determine but was subject to ultimate determination by the courts.

R (Barclay & Ors) v Secretary of State for Justice & Ors [2009] UKHL 9. The presence of unelected members in the legislature of Sark was not a breach of the right to free elections under Protocol 1 Article 3 of the ECHR.

Re I (A Child) [2009] UKSC 10. The English courts had jurisdiction to consider the future level of contact between a mother and child, even though the child was habitually resident outside the EU.

Secretary of State for Environment, Food and Rural Affairs v Meier & Ors [2009] UKSC 11. An injunction could not be granted against travellers in respect of distinct land not yet occupied.

Re A v B [2009] UKSC 12. The Investigatory Powers Tribunal and not the High Court had jurisdiction to determine A’s complaint against MI5’s decision to refuse him permission to publish memoirs of his time in the intelligence services.

Barratt Homes Limited v Dwr Cymru Cyfyngedig (Welsh Water) [2009] UKSC 13. The property owner, not the sewerage undertaker, had the right to determine point of connection to public sewer.

R v Horncastle and Ors [2009] UKSC 14. The use of hearsay evidence in English criminal proceedings was compatible with Article 6 ECHR. The Court refused to follow a decision of the Court of Human Rights.

R (E) v The Governing Body of JFS & Ors [2009] UKSC 15. By a 5-4 majority, the admissions policy of the Jewish Free Schools was held to be discriminatory under s.1(1)(a) ofthe Race Relations Act 1976 after JFS refused to admit E, whose mother was not Jewish by birth.

AM (Somalia) & Ors v Entry Clearance Officer [2009] UKSC 16. The ECO is obliged to take into account availability of financial support from third parties, other than the sponsor, when assessing whether an applicant would be reliant on public funds.

S-B (Children) [2009] UKSC 17. The standard of proof applicable to child care proceedings is the balance of probabilities but where a judge is unable to identify a perpetrator it is positively unhelpful to give an indication of percentages. Predictions of future harm must be based on findings of fact

Improvements?

Some of the practical qualities of the new Court were immediately obvious. Justices, practitioners and members of the public alike welcomed the new building as a vast improvement compared to the cramped (if atmospheric) committee rooms in the Palace of Westminster. The Court delivered on its manifesto aim to provide greater transparency: hearings were televised for the first time (though the intended live television feed was dropped after the first few hearings, apparently due to lack of public demand); the website provided useful information such as well written press releases summarising each case.

There were interesting innovations in judgment writing too. Beginning with Sigma Finance, the Court showed its willingness to have the judgment of the Court provided by one Justice, which other Justices concurring (or, as Lord Walker did in Sigma, dissenting). The Justices managed to work fast – even whilst sitting on occasions in panels of 7 and even 9 (in JFS and the Norris extradition appeal, in which judgment is still pending), the average time between hearing and judgment in the new court is 5½ weeks.

On the other hand, there were certain teething problems which still need to be addressed. There has been criticism of the website, which has been prone to glitches; of the £350 charge for accessing documents from the Court’s file; of the continuing failure to make the written submissions of parties available to the public; and of the fact that there is no public list of the decisions on permission to appeal – which is a step down from the old House of Lords.

Trends

Three points quickly emerge when considering the term’s judgments. First, appellants had a high success rate (8 of the 17 cases). Second, human rights issues continue to occupy a substantial part of the Court’s time. Between 2002 and 2007 between 28% and 41% of House of Lords appeals raised human rights issues. That trend has continued in the Supreme Court, which considered human rights issues in 6 of the judgments. Third, with the notable exception of the 5:4 decision in the JFS case, there has been a high degree of unanimity. Of the 17 judgments given, 13 were unanimous. There were single dissents in Sigma, BA (Nigeria) and Barratt Homes.

As for longer term trends, it is too early to say whether there has been a paradigm shift in the Court’s approach. So far, it has been a case of “business as usual”: we have not seen a ‘Marbury v Madison moment’, where the Court confers on itself the power to strike down legislation which it regards as unconstitutional, as the US Supreme Court did in 1803. Intriguingly though, there have been certain commentators, including Lord Neuberger and Professor Conor Gearty, who have suggested that – whatever the narrow intentions of Parliament were back in 2005 – the seeds of a more radical court (armed with quasi-constitutional ECHR rights, and keen to keep pace with its more powerful overseas siblings) may inadvertently have already been sown.

On balance, most practitioners seem to agree that the pros of the new Court outweigh its cons. Hence, our verdict on the first term is: a steady performance, with some interesting pointers towards future innovation.